POLITICS
07/31/2018 12:48 pm ET

Why It Doesn't Matter If 'Collusion' Is A Federal Crime

Trump, Giuliani and company have a new defense in the Russia investigation — and it’s weak.

The excuse you knew was coming is finally here.

After months of arguing there was no collusion with the Russians, President Donald Trump and his allies have now added a new defense: Even if there had been collusion, it wouldn’t matter.

The prompt for this argument is last week’s report that Michael Cohen, Trump’s former lawyer, is prepared to testify that the president knew about the now-infamous Trump Tower meeting from June 2016.

That’s the meeting in which Trump confidantes, including Don Jr. and then-campaign manager Paul Manafort, met with a Russian agent who had promised to deliver embarrassing information about Hillary Clinton that would damage her presidential candidacy.

If that’s true ― and of course that’s still a big “if” ― it would be the strongest sign yet that Trump himself not only knew the Russians were trying to help him win the election, but welcomed the assistance, helped to make it happen, and maybe even promised something in return.

Now, key Trump advisers Rudy Giuliani and Chris Christie are arguing that Trump’s involvement in such an effort wouldn’t be a big deal. “I have been sitting here looking in the federal code trying to find collusion as a crime,” Giuliani, the former New York mayor now serving as Trump’s lawyer, told ”Fox & Friends on Monday. “Collusion is not a crime.”

Christie, the former governor of New Jersey, used the exact same phrase during an ABC’s “This Week” appearance on Sunday. “Collusion is not a crime,” he said, “and so the fact of the matter is that we’re a long way away yet from having anything to talk about here.

By Tuesday, Trump himself was invoking the exact same argument, with the exact same words, even as he maintained his insistence that he hadn’t colluded in the first place.

If that all sounds overly legalistic, that’s because it is.

Although “collusion” per se might not violate federal law, at least outside the context of antitrust, conspiracy to commit some other federal crime would be. Organizing an effort to hack into and expose Clinton’s emails ― or to violate campaign finance regulations, by accepting help from a foreign agent ― would fall into those categories, just to take two purely hypothetical examples.

But whether Trump technically violated this or that provision of the federal code is in many respects beside the point, at least when it comes to whether Congress, at some point, should impeach him and remove him from office.

The key thing to remember is that impeachment is not about punishing or deterring crime in the way that, say, a law against fraud or assault is. It’s about removing officials from office because they are unfit or undermining the democratic workings of government ― or what Josh Chafetz, a Cornell law professor and expert on impeachment, calls “serious offenses against the state.”

The Constitution’s history bears this out, as Chafetz notes. The original draft called for impeachment and removal only in cases of bribery and treason. George Mason, the Virginia delegate, thought that criteria was too narrow, because it would leave out “great and dangerous offenses,” and proposed adding the phrase “maladministration.” The convention settled instead on “high crimes and misdemeanors,” an alternative Alexander Hamilton suggested, for fear that Mason’s wording would give the Senate too much leeway to remove a president of whom it didn’t approve.

To be an impeachable ‘high crime or misdemeanor’ does not require violating an ordinary criminal law Josh Chafetz, law professor at Cornell University

“To be an impeachable ‘high crime or misdemeanor’ does not require violating an ordinary criminal law,” Chafetz says. “And the converse is also true: not every violation of ordinary criminal law would constitute a high crime or misdemeanor.”

The history of presidential impeachments is more or less consistent with this standard. In the 19th century, it was a refusal to carry out Reconstruction, in direct and open defiance of Congress, that got Andrew Johnson impeached and very nearly removed. In the 20th century, it was a conspiracy to spy on and sabotage political enemies that would have pushed Richard Nixon out of office, had he not resigned first.

Lying under oath, Bill Clinton’s offense, was an unambiguous act of perjury. But it was in a civil trial over what most Americans considered a private, rather than public, matter. That’s a big reason why the Senate fell so many votes short of removing him.

If Trump actively colluded with Russians in 2016, that would seem to be a lot closer to Johnson and Nixon’s offenses than to Clinton’s. You could even make a case that such actions would be worse than what Johnson or Nixon did, especially because the Founders were obviously very concerned about the influence of foreign actors ― as the separate, explicit reference to “treason” in the Constitution’s impeachment clause suggests.

The same would go for perjury related to Russian interference and a possible cover-up, which is why Turmp’s lawyers are so reluctant to let him sit for an interview with special counsel Robert Mueller.

And all of this is to say nothing of whatever Trump might have done after the June 2016 meeting ― both during the campaign, when he openly encouraged Russia to find deleted emails from Clinton’s time at the State Department, and during his presidency, when he has tried over and over again to undermine the FBI investigation of what really happened with the Russians. 

It’s easy to forget, when news like last week’s Cohen story breaks, that Trump may have already said and done enough in full public view ― like firing former FBI Director James Comey, and then saying on national television he did so because of the Russia probe ― to warrant a serious impeachment inquiry.

Giuliani, Christie, and Trump himself don’t want Americans to think too hard about that, which is why they’re turning the argument over collusion into a detailed legal dispute about the federal criminal code.

But the issue that will come before Congress and ultimately the voting public has less to do with legal technicalities than with a much bigger, more profound question: Has Trump broken the rules of American democracy when it comes to what you can do when seeking public office — and what you can do once you hold it? There’s more and more reason to think he has.

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